Hindustan
Aeronautics Ltd., appellant herein, is a public sector undertaking having a
number of units in the country and one such unit is located at Hyderabad. The appellant has made rules
providing for employment on compassionate grounds. Rule 78.1 prescribes that
one of the dependents of the deceased employee could be considered for
appointment in the company, in preference to other applicants without being
sponsored by the employment exchange. In Rule 78.3 it is, however, laid down
that the General Managers are empowered to effect such appointment depending
upon available ability of vacancies in the respective staffing
cadre/authorization. A.S. Thirumalai, the husband of the respondent, was
employed as Senior Inspector [Quality Control] in the Hyderabad Unit of the
appellant. He died on August
10, 1987. After his
death the respondent submitted an application for appointment on compassionate
grounds. Since a number of other applications had been received earlier for
such appointment on compassionate grounds the name of the respondent was put on
the wait list of candidates who had applied for employment on compassionate
grounds. Her name was at Sl.No. 22 in the said wait list. On account of a ban
having been imposed on further appointments in the various units of the
appellant no appointment could be made on compassionate grounds out of the said
wait list. The respondent filed a writ petition [W.P.No.12896 of 1991] in the
Andhra Pradesh High Court praying for a writ of mandamus directing the
appellant to provide suitable permanent employment to the respondent by
creating a supernumerary post. The writ petition was opposed by the appellant
on the ground that no vacancy was available since there was a ban on fresh
recruitment and, therefore, appointment could not be given to the respondent.
The learned Single Judge of the High Court by judgment dated July 21, 1995
issued a writ of mandamus directing the appellant to consider the candidature
of the respondent on compassionate grounds to any suitable post in Class III or
Class IV only and, if found suitable and eligible to appoint her to such post
within a period of two months. The learned Single Judge rejected the submission
urged on behalf of the appellant that since there was a ban on further
recruitment the appointment could not be given on compassionate grounds to the
respondent. Reliance was placed on the observations contained in the decision
of this Court in Smt. Sushma Gosain & Ors v. Union of India & Ors.,
1989 (40 SCC 468. The appeal filed by the appellant against the judgment of the
learned Single Judge was dismissed by the Division Bench of the High Court by
judgment dated April
26, 1996. It was held
that appointment on compassionate grounds is given notwithstanding whether
there is any vacancy in the regular service or cadre or post, by creating
supernumerary post and continuing such supernumerary appointment until a
regular vacancy is made available and the dependent of the bread winner is
brought to the main stream of the service. Feeling aggrieved by the said
judgment of the Division Bench of the High Court the appellant has filed this
appeal.

Shri
A.N. Jayaram, the learned senior counsel appearing for the appellant, has
submitted that the appellant is a high-tech Government company essentially
attempting to meet defence requirements of aircrafts and that during the last
10 years, owing to change of policies, there is a serious decline in the
work-order position and as a result the appellant is compelled to progressively
decrease its manpower by placing a ban on fresh recruitment and offering
incentives for voluntary retirement. It has been pointed out that during the
period April 1, 1987 to April 1, 1996 there has been a progressive reduction of the workforce
including Class III and IV employees in all the units including the Hyderabad unit. The submission is that the
High Court was in error in holding that even when there is no vacancy available
and there is a ban on fresh recruitment it was incumbent on the appellant to
give appointment on compassionate grounds to the respondent. Shri Jayaram has
place reliance on the decisions of this Court in Life Insurance Corporation of
India vs. Asha Ramchandra Ambekar & Anr., 1994 (2) SCC 718; Umesh Kumar Nagpal
vs. State of Haryana & Ors, 1994 (4) SCC 138; State of Haryana vs Naresh
Kumar Bali,1994 (4) SCC 448 and Himachal Road Transport Corpn. vs. Shri Dinesh
Kumar, 1996 (4) SCALE 395.

Shri Nageshwara
Rao, the learned counsel appearing for the respondent, has supported the
impugned judgment of the High Court and has submitted that since appointments
have admittedly been made by the appellant on compassionate grounds in the
medical department there was no reason why the respondent could be given an
appointment on compassionate grounds in that department.

In Umesh
Kumar Nagpal [Supra] this Court has pointed out that appointment in public
services on compassionate ground has been carved out as an exception, in the
interest of justice, to the general rule that appointments in the public
services should be made strictly on the basis of open invitation of
applications and merit and no other mode of appointment nor any other
consideration is permissible. A compassionate appointment is made out of pure
humanitarian consideration taking into consideration the fact that unless some
source of livelihood is provided the family would not be able to make both ends
meet and the whole object of granting such appointment is to enable the family
to tide over the sudden crisis. This court has also laid down that an
appointment on compassionate ground has to be given in accordance with the
relevant rules and guidelines that have been framed by the concerned authority
and no person can claim appointment on compassionate grounds in disregard of
such rule or such guideline [see : Life Insurance Corporation vs. Asha Ramchandra
Ambekar(supra)].

In the
appellant company appointment on compassionate grounds is governed by rules.
Under Rule 78.1 provision is made that one of the dependants of the deceased
employee could be considered for appointment in the company in preference to
other applicants without being sponsored by employment exchange. But in Rule
78.3 it has been laid down that such appointment would be made depending upon
the availability of vacancies in the respective staffing cadre/authorization.
In other words, an appointment on compassionate grounds can be made only if a
vacancy is available. According to the appellant no vacancy is available since
there is surplus labour and the policy of the appellant is to progressively
reduce the workforce and with that end in view a ban has been imposed on fresh
recruitment and the appellant is also offering incentives for voluntary
retirement. The learned Single Judge of the High Court was of the view that in
spite of such a ban on fresh recruitment it was obligatory for the appellant to
make appointment on compassionate grounds. The learned Single Judge has placed
reliance on the following observations of this Court in Sushma Gosain [supra]
at p.470:

"We
consider that it must be stated unequivocally that in all claims for
appointment on compassionate grounds, there should not be any delay in
appointment. The purpose of providing appointment on compassionate ground is to
mitigate the hardship due to death of the bread earner in the family. Such
appointment should, therefore, be provided immediately to redeem the family in distress.
It is improper to keep such case pending for years. If there is no suitable
post for appointment supernumerary post should be created to accommodate the
applicant." In Umesh Kumar Nagpal [supra] it has been indicated that the
decision of Sushma Gosain [supra] has been misinterpreted to the point of
distortion and that the decision does not justify compassionate appointment as
a matter of course. The observations on which reliance has been placed by the
learned Single Judge in Sushma Gosain [supra] have to be read in the light of
the facts of that particular case. In that case the appellant, Smt. Sushma Gosain,
after the death of her husband, who was working as Storekeeper in the Department of Director General
Border Road, sought
appointment as Lower Division Clerk on compassionate grounds. In January, 1983
she was called for the written test and later on for interview and had passed
the trade test. She was, however, not appointed till January, 1985 when a ban
was imposed on appointment on ladies in the said Department. Having regard to
these facts this Court has observed :

"...........
Sushma Gosain made an application for appointment as Lower Division Clerk as
far back in November 1982. She had then a right to have her case considered for
appointment on compassionate ground under the aforesaid Government memorandum.
In 1983, she passed the trade test and the interview conducted by the DGBR.
There is absolutely no reason to make her to wait till 1983 when the ban on
appointment of ladies was imposed.

The
denial of appointment is patently arbitrary and cannot be supported in any view
of the matter." [p.470].

In the
instant case the ban on fresh recruitment was in force when the respondent
submitted the application for appointment on compassionate grounds. The
decision in Sushma Gosain [supra] has, therefore, no application in the facts
of this case.

In
that case this Court was dealing with two cases where applications had been
submitted by the dependents of the deceased employees for appointment on
compassionate grounds and both of them were placed on the waiting list and had
not been given appointment. They approached the Himachal Pradesh Administrative
Tribunal and the Tribunal directed the Himachal Road Transport Corporation to
appoint both of them as Clerk on regular basis. Setting aside the said decision
of the Tribunal this Court has observed :

".....
In the absence of a vacancy it is not open to the Corporation to appoint a
person to any post.

It
will be a gross abuse of the powers of a public authority to appoint persons
when vacancies are not available. If persons are so appointed and paid
salaries, it will be mere misuse of public funds, which is totally unauthorised.
Normally, even if the Tribunal finds that a person is qualified to be appointed
to post under the kith and kin policy, the Tribunal should only give a
direction to the appropriate authority to consider the case of the particular
applicant, in the light of the relevant rules and subject to the availability
of the post. It is not open to the Tribunal either to direct the appointment of
any person to a post or direct the concerned authorities to create a
supernumerary post and then appoint a person to such a post." [p.397] As
regards the submission of Shri Nageshwara Rao that the respondent could be
given compassionate appointment in the medical department it may be stated that
there is nothing to show that any appointment on compassionate ground has been
made in the medical department after the respondent had submitted her
application for such appointment. It cannot, therefore, be said that any
vacancy is available for making such appointment in that department.

All
that can be said is that in the event of the appellant making fresh appointment
on a Class III or Class IV post the application of the respondent for
appointment on such post shall be given due consideration in accordance with
her ranking in the waiting list.

For
the reasons aforementioned we are unable to uphold the impugned judgment of the
High Court. The appeal is accordingly allowed, the judgment of the High Court
dated April 26, 1996 in the writ Appeal No. 103 of 1996
as well as the judgment of the learned single judge dated July 21, 1995 in W.P. No. 12896 of 1991 are set
aside and the writ petition filed by the respondent is dismissed. No order as
to costs.